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01.05.2019

Farmer ordered to pay €31,000 for dismissal of employee with MS

 

 

Farmer ordered to pay €31,000 compensation to employee with MS

A farm manager with multiple sclerosis recently made a successful claim for unfair dismissal against his former employer. The employee began his employment with the farmer as a general operative on 1st January 1993. Over the course of his employment, he was appointed to the position of farm manager. The role included numerous physical jobs such as transporting materials, driving vehicles and operating machinery.

Employee’s claim

The employee received his diagnosis of multiple sclerosis in 2004. He immediately notified his employer of the diagnosis. He stated that his work was never affected by the illness and referred to the fact that he had only missed 3 days through sick leave during his long employment history.

On 22 June 2016, the farmer told the employee that his insurance provider would no longer provide adequate cover for him due to his illness and sent the claimant home from work. On 25 June, the employee attended for work as he felt the decision to dismiss him was made in haste but was again sent home on the basis of the insurance issue. The employee submitted stated that there had never been an insurance issue previously and confirmed he had a full driving licence that is renewed every 3 years.

The employer stopped paying the employee his weekly wage on 4 July 2018.

On 4 August 2018, the farmer called to his employee’s home to advise him that he should either work part-time or go on disability to reduce his stress levels. The employee submitted evidence that to the Adjudication Officer (AO) that the farmer told him that most people with MS would have “fallen off the edge of the table by now”.

Two weeks later, the employee provided the respondent with letters from both the Irish Wheelchair Association and his neurologist confirming he was fit to drive. A solicitor’s letter followed requesting reinstatement to his role and documentation to demonstrate the insurance company’s position. The solicitor received a reply which included a letter from the insurance provider dated June 2019 seeking a medical report. The letter also confirmed that the renewal date of the insurance policy was January 2019.

Employer’s reply

The farmer confirmed that at the time of the initial diagnosis, he sought medical advice from a medical professional regarding the employee’s future fitness to work from a health & safety perspective. The advice he received was to “reduce stress to absolute minimum levels and to reduce working hours to alleviate tiredness”. Following receipt of the report, the employee’s managerial duties were reduced and it was agreed that he would work reduced hours during harvesting seasons.

In March 2018, the farmer returned from a holiday to discover the employee had cut his hand doing routine maintenance with a chainsaw. The employee did not report the accident but when the farmer learned of the incident, he notified his insurance company.  Following the accident, the farmer’s concerns regarding health & safety risks increased and he sought reassurances from the employee.

The farmer confirmed that the Irish Wheelchair Association provided the employee with a fitness to drive certificate but he had not received any reassurances from the employee’s neurologist concerning his fitness to drive heavy agricultural machinery. The farmer argued that he was not in a position to allow the employee to drive until he had received confirmation from the neurologist.

WRC decision

The AO set out that in cases involving capability, the test used in the High Court case of Bolger v Showerings (Ireland) Limited must be followed. The High Court stated that the following key requirements must be met when an employee is being dismissed for incapacity:

“i) Ill-health must be the reason for the dismissal;

  1. ii) This must be a substantial reason;

iii) The employee must be notified that dismissal for incapacity is being considered; and

  1. iv) The employee must be given a chance to be heard”

The AO found that none of the above requirements were met. The farmer took no reasonable steps to engage with the employee and assess if there was a substantial reason why he could not continue in his role. The farmer also failed to notify the employee that dismissal for incapacity was being considered.

The employee was not given an opportunity to respond which is a key step to ensure the principles of natural justice are respected.

The AO determined that the employee was unfairly dismissed from his employment. The complainant was awarded €29,000, or one year’s salary in compensation for his unfair dismissal. The farmer was also ordered to pay the employee €2,240 in compensation for failing to provide terms and conditions of employment.

Vital to follow fair procedures in cases involving capability

When assessing an employee’s fitness to work, it is essential to follow the principles of natural justice. The employee must be notified that their capacity is being reviewed and given an opportunity to issue a response. Where an employer has genuine concerns regarding health & safety, it should engage with the employee and discuss any concerns prior to making any decision. If conflicting medical advice is provided, an independent opinion should be sought. Employers also need to consider the viability of reasonable accommodations that would allow an employee with a medical condition to continue in employment.

Need help with a capability issue?

Please contact the advice line on +353 1 886 0350 to speak with a consultant on this or any other HR issue affecting your organisation.

 

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